As I said in my introductory post, one of the key topics of this newsletter is collective action against authoritarianism. I'm going to set out the theory under which I'm operating, derived from some materials I wrote for a continuing legal education presentation last week. This is part 1 of a 2 (maybe more?) part series on universities and law firms in particular.

Let's begin by defining some terms. I will use authoritarian to mean a political order where the executive's power is grossly inadequately constrained by law, such that it compromises the capacity of the democratic public to exercise ultimate control over the holders of political authority. For example, an executive may have the capacity to harass political opponents and punish dissent, so that the political opposition does not operate on a level playing field when election time rolls around.

Levitsky and Way describe a contemporary form of authoritarianism as "competitive authoritanism," where elections still exist, but they can no longer be described as "free and fair" because of the recurrent abuses of power by an executive or ruling party to impede the opposition. As a salient example, consider the "presidential memorandum" signed on April 24, 2025, ordering the Attorney General to investigate alleged foreign election contributions, which appears to be directly if not exclusively targeted against ActBlue, the primary fundraising entity of the opposition party.

I will use civil society in a broad sense to mean the organizations outside government that provide a settings, resources and tools for individuals to engage in organized political and social action. While this definition encompasses major elements of the nonprofit sector (civic organizations, clubs, universities, etc.), it is not limited to it. Individuals often engage in political and social action with the aid of a variety of for-profit enterprises as well, such as the free press and law firms.

The Strategic Dynamics of Authoritarianism

All political leaders require the cooperation of vast numbers of ordinary people in order to exercise power. Even a military dictatorship requires not only soldiers, but accountants and other bureaucrats to endure that the soldiers get paid, a wide variety of private economic actors to ensure that the soldiers get fed and housed, lawyers or something like lawyers to transmit the dictator's order to the populace and resolve private disputes about the obedience of those orders, and serve many other functions.

Under conditions of well-ordered constitutional democracy, the relationship between political power and the personnel necessary for its exercise is typically mediated by liberal institutions. Chief among such institutions is a legal system compliant with the rule of law, which defines the scope of authority that leaders may exercise over those who directly work for them and the scope of permissible commands that may be issued to the general public, provides a neutral dispute-resolution system to manage conflicts (the independent judiciary), and establishes the conditions for acquiring and transferring legitimate power through the regulation of democratic institutions. Free markets coordinate the provision of ancillary functions necessary for such well-ordered governance by generating incentives sufficient to ensure that the needs of both the public sector and private sector are met (for example, through the existence of a robust legal profession). Most of the time, most of the ways that individuals participate in governance are more or less voluntary: private actors do so because it is in their economic interest, and public and nonprofit sector actors are motivated by weaker economic incentives plus a value-based identification with the institutions they serve. This general voluntariness operates as a background constraint on the abuse of power, insofar as a leader who engages in sufficiently severe abuses may be unable to recruit support.

Under authoritarianism, leaders no longer rely on primarily voluntary participation in their use of power. Authoritarians tend to want to do things that ordinarily would generate widespread opposition, such as corruptly convert public resources to their personal wealth, hold power without electoral checks, retaliate against personal enemies, or conduct whimsical and destructive public policies driven by ego or hatred rather than care for the interests of their fellow citizens. Unable to secure a sufficient degree of voluntary cooperation with these goals, they seek to acquire involuntary cooperation through coercion and fear, and seek to undermine the legal constraints on their use of power in order to deploy that coercion and fear.

This generates what we might call the paradox of authoritarianism: the delivery of coercion itself requires widespread cooperation: recall that the police and soldiers must be willing to use force, the lawyers must be willing to organize and transmit commands, the landlords and grocers must be willing to provide services to all of those personnel, and so forth. So how, then, does authoritarianism get off the ground? For example, one frequent way that even established authoritarian regimes fail is that they order their soldiers or police to fire on protestors, and those soldiers refuse, instantly destroying the crediblity of the regime's coercive threats.

One strategy that seems to correspond (intentionally or otherwise) to the Trump Administration's present behavior is to test the waters with initial and escalating abuses of power against discrete individuals and groups. If those abuses go unresisted, they achieve two goals.

• First, they directly weaken their targets, who may lose resources, personnel, or other tools that might be deployed to resist later abuses.

• Second, the successful abuse of power against early targets intimidates subsequent targets and their allies.

The strategic dynamics of this successive intimidation are critical for understanding how authoritarianism works. An authoritarian with command over vast coercive tools can only effectively be resisted, including by the simple unwillingness to cooperate, if each individual who is opposed to abuses of power also knows that lots of other people are opposed to those abuses (a condition that game theorists call "common knowledge"). Otherwise, a would-be resister rightfully fears standing alone, because then they are vulnerable to crushing retaliation. A would-be resister who has confidence in their fellows, however, will know that retaliation against them will be less likely to succeed, because it will in turn, be met with supportive resistance (including noncompliance) from others. Initial successful acts of abuse of power, particularly against unpopular enemies, are thus potentially effective ways for an authoritarian to undermine the common knowledge of mutual unwillingness to tolerate further abuses.

This analysis is largely drawn from research by the economist and political scientist Timur Kuran, who has written extensively about the coordination dynamic at the opposite end of an authoritarian transition. There, he shows, expressions of willingness to resist a hated regime can overcome what he calls "preference falsification" to create cascading opposition that brings the regime down. This is widely understood to be a key dynamic in the Arab Spring revolutions of 2011 and 2012, and equally well applies to the early stages of an authoritarian transition, where robust resistance, if coordinated, can stop the fall of constitutional democracy.

Civil Society and Authoritarianism

Institutions of civil society and the economy, such as the free press, law firms, major companies, and universities, are key to the defense of the rule of law because they serve four important functions in stemming an authoritarian transition.

First, they can serve as a delivery mechanism for centralized authority or for its opposition. For example, a law firm might be willing or unwilling to represent those who are adverse to the regime. A newspaper may be willing to publish dissent or propaganda. A university might agree to punish its students or faculty for expressing political opposition to an authoritarian regime, or it might refuse to do so. In that situation, such institutions may choose to either reinforce or undermine the power of an authoritarian who needs help to undermine the legal restrictions on his behavior.

Here's a recent negative example of the role of civil society in enforcing, or declining to enforce, authoritarian abuses of power. A Texas lawyer named Clay Jackson provided some pro bono legal advice in his personal time to a mixed immigration status family. Shortly after providing this advice, he was visited at home by plainclothes agents, who told him that he was "obstructing an ongoing immigration investigation." He refused to speak with the agents, and described the encounter to well-known civil libertarian journalist Radley Balko, who reported it on his Substack Hours after the story appeared, Jackson's employer, Fidelity National Financial, fired him. Assuming, as seems likely, that he was fired for his providing pro bono advice on a cause opposed to Donald Trump's policies, his firing contributed to the executive branch's lawless campaign to deter constitutionally protected speech and actions in support of the rule of law and democracy.

Second, civil society institutions, especially prominent ones, serve an important signaling function for other institutions as well as the general public who are calculating whether they can risk opposing abuses of power. This is the positive side of the coordination dynamic derived from Professor Kuran's research that I describe above. Many people and organizations are unwilling to protest or otherwise impede the abuse of power unless they have some reason to think that they won't be sticking their necks out alone. This is for obvious reasons: it's much more costly for an authoritarian to punish a thousand people than it is for them to punish one person. The same logic holds for institutions such as universities, law firms, newspapers, and so forth. Therefore, when prominent institutions boldly oppose abuses of power, they communicate to ordinary people as well as their peer institutions that if those others also choose to decline to cooperate, they won't be alone. This increases everyone else's chance of success.

The recent events surrounding universities illustrate this dynamic quite clearly. As will be further discussed below, the executive branch undertook a variety of illegal actions against prominent universities, based largely on pretextual allegations of antisemitism surrounding the protests about the war in Gaza. Initially, the executive branch was aimed at Columbia University. Columbia promptly made dramatic concessions, such as imposing external supervision on an academic department, the contents of whose teaching and research angered Trump and his allies.

However, Trump made a tactical error: after receiving those concessions, it did not withdraw any actions against Columbia (its research funding, for example, remained suspended). The administration then issued a series of even more unconstitutional demands against Harvard, like submitting to external supervision in all of its hiring and admissions choices. Because Harvard is the oldest, most prominent, and wealthiest university in the United States, its very public refusal of Trump's demands (and subsequent lawsuit) appears to have inspired other universities to likewise commit to collective refusal. This is how signaling works.

Third, civil society institutions provide ordinary people with the resources to engage in collective projects and collective social life. Employers, churches, clubs, universities, unions, trade and professional associations, and other organizations oriented around common goals or common interests of large groups of people provide a setting through which people may come to know one another, their values and shared commitments. Research in political science has suggested that the workplace, for example, is a key site where people engage in (presumptively civil due to workplace norms) discussion with political opponents. Such settings are, under favorable conditions, where people learn to trust one another and build stable relationships of solidarity that are the foundation of collective action in the social and political sphere. (Admittedly, those favorable conditions can be empirically complex, and political scientists and sociologists have been wrestling with it for a while.)

Fourth, civil society organizations such as trade and professional associations have the capacity to speak directly for and to their members, expressing their common values and interests. The statements of important legal and academic organizations like the ABA and the American Association of Colleges and Universities, among others, in defense of the rule of law are important examples of this function. Internally, such expressions serve a further signalling function permitting members of those professions who hold those values to develop a greater degree of confidence that their values are shared. That facilitates coordination among members of those groups. Externally, they serve as demands that presumptively represent the will of large groups of constituents and thus can further defeat the preference falsification dynamic by permitting broader public knowledge of the values and commitments of large sectors of society.

On Collective Defense

Because of these functions, it's critical that we defend civil society and that institutions in civil society engage in collective defense. Thinking a bit more about the situation with universities and with law firms can help us unpack how to do this.

The law firms situation appears quite grim. A number of firms made "agreements" with Trump to provide "pro bono" legal services to get out from under his wildly illegal executive orders---or the threat thereof---against them. (More on their illegality in a subsequent post.) The terms of such agreements as exist are not public or terribly clear. Unsurprisingly, Trump appears to be taking a maximalist view of what he can command the firms who entered into them to do. He seems to think that he can“send[...] the lawyers to help Elon Musk’s Department of Government Efficiency or deploy[...] them to aid the Justice Department” or even “represent[...] Mr. Trump or his allies if they became ensnared in investigations”. Nor does this appear to be mere bluster: as of this writing one executive order has already been issued instructing the Attorney General to make use of pro bono services from an unspecified source to defend police against civil rights suits.

In Trump’s words: “But it’s — you know, these are the most powerful firms in the world. And they just signed whatever I put in front of ‘em. I’ve never seen anything like it. I’m— I’m actually surprised myself in a certain way.”

Obviously, this behavior needs to be resisted. The problem is that resistance is costly and risky: it might be met by escalation, and many of those who resist actions taken directly against them must incur severe temporary costs, such as universities whose research funds remain withdrawn and law firms who remain under orders attempting to strip them of clients and access to federal buildings.

Other potential targets can either assist or impair such resistance. In the negative category, Brad Karp, the chair of Paul Weiss, reported that after their executive order other firms began to attempt to take advantage of the situation by recruiting their clients and attorneys. According to Karp, this was a major factor in his decision to comply with Trump's demands. This demonstrated lack of solidarity doubtless emboldened the issuance of executive orders targeting other law firms. Such outrageous behavior is a tragic failure of the duty of all lawyers to defend the independence of the legal profession, and, thereby, the rule of law.

By contrast, there are reports suggesting that the capacity of universities to resist challenges to their First Amendment rights and the First Amendment rights of their students and faculty are benefiting from increasing solidarity. While (sensibly) the rest of us do not have access to information about the details of those plans, it is to be hoped that they include strategies such as joint communications, shared support for displaced personnel, and perhaps even joint financial enterprises to permit those schools most ruinously targeted to defend themselves longer.

Such strategies are readily available to the legal profession. Among the supports lawyers can offer one another include:

• A commitment to not attempt to recruit clients or associates from one another in response to attacks by the executive branch (while retaining robust competition in all other circumstances).

• Pro bono representation to less well resourced members of the profession facing executive branch retaliation as well as offers of employment to individual lawyers who have suffered personal loss as a result of efforts to resist executive branch retaliation.

• Assistance in carrying out legal services that would otherwise be carried out by those subjected to executive branch retaliation---for example, the supply of personnel to carry out necessary meetings inside federal buildings on behalf of members of those firms subject to executive orders barring them, or the services of lawyers who retain security clearances as co-counsel on cases that require such clearances.

• The withdrawal of resources from Trump and those who carry out Trump's unlawful behavior, for example, by declining to hire Department of Justice alumni who willingly offered clearly meritless defenses of unlawful executive action and the withdrawal from any promise to offer pro bono services at the direction of the President.

• The coordination of pro bono legal assistance to other individuals and entities targeted by unlawful executive branch actions.

To support such efforts, local bar associations should provide educational programming and public messaging reemphpasizing the ethical principles of the legal profession, such as the lawyer's duty of loyalty and zealous advocacy, which are inconsistent with a lawyer's permitting their representation of clients to be dictated by the federal government. Those duties should be enforced with discipline where appropriate.

Finally, individual lawyers should not compromise their own practices or the rule of law principles they serve. Each lawyer must continue to serve clients consistent with their own values and their evaluation of the legal merits of a client's position rather than succumbing to government intimidation. To the extent it is consistent with a lawyer's values and the economics of their practice, pro bono work in support of unpopular but meritorious causes like due process for immigrants can make a substantial contribution to upholding the rule of law by forcing the government to bear the full cost of its overreach in the use of power.